[1] The Petitioners are residents of Kwale County where they work for gain by supplying coral stones to Coast Calcium Ltd . In their Petition dated 28 th November 2022, they averred that following the enactment of the Kwale County Quarrying Act 2016, the respondent has been charging them cess, yet Section 14 of the Act provides, for cess payment for mineral transporters for goods coming in and temporary permits for goods going out of the County.
[2] The Petitioners averred that their efforts to have their concerns discussed with the respondent have yielded no fruits. They added that they also tried to negotiate with the respondent and have the cess levy reduced to Kshs. 10 per ton, but even this request was declined. It was therefore their contention that the cess levy goes against the national values and principles stipulated under Articles 10, 209(5) and 210 of the Constitution and the Public Finance and Management Act, 2012 .
[3] The petitioners also complained that the respondent had raised invoices for payment for the period from 18 th August 2022 to 8 th October 2022 being Kshs. 686,700/=, Kshs. 174,100/= and Kshs. 55,400/= for the 1 st , 2 nd and 3 rd petitioners, respectively. They further averred that, to recover the sums mentioned, the respondent clamped their vehicles. It is their contention that the clamping was done in violation of their right to fair administrative action under Article 47 of the Constitution.
[4] The petitioners also took issue with the fact that the respondent relied on outdated County laws to charge them cess. They posited that the respondent is expected by the Constitution to enact Finance Acts on an annual basis; and therefore there was no legal basis for levying cess for the year 2022.
[5] Accordingly, the petitioners prayed for the following reliefs against the respondent:
[a] A declaration that the collection of cess from the petitioners for coral stones mined from the local quarries within the County is unconstitutional, null and void.
[b] An order quashing all the invoices issued to the petitioners by the respondent in relation to the payment of cess and for de-clamping charges as per the invoices dated 12 th October 2022 and Clamping Sheet dated 25 th November 2022.
[c] A permanent injunction to restrain the respondent whether by itself, its agents, servants, employees or whosoever else acting under its directions and/or instructions from holding, clamping, restraining movement, impounding, sanctioning, prosecuting and/or dealing in any way with Motor Vehicles Registration Numbers KDH 001Z, KBJ 329D and KAG 148D or any other vehicles belonging to the petitioners.
[d] Loss of user damages from the impounding of the petitioners’ motor vehicles to be assessed by Court as per the Contract dated 25 th June 2022.
[e] General damages
[f] Costs of the Petition
[g] Any other relief as the Court deems appropriate in the circumstances to grant.
[6] The respondent opposed the Petition. It relied on the Replying Affidavit sworn by its County Executive Committee Member in charge of Finance, Executive Services and Economic Planning, Mr. Bakari Hassan Sebe . According to the respondent, the Petition herein does not raise any substantive constitutional issue or any public interest concerns. It averred as the levying of cess was in conformity with the Kwale County Finance Act, 2014 and Kwale Quarrying Act, 2016 , both of which were enacted pursuant to Article 209(4) of the Constitution. The respondent explained that the cess is provided for under the Schedule to the Kwale County Finance Act as payable to the County for the use of County roads and not mining activities.
[7] The respondent relied on the Supreme Court case Base Titanium Limited v County Government of Mombasa & another (Petition 22 of 2018) [2021] KESC 33 (KLR) (16 July 2021) (Judgment) to support its assertion that the imposition of the levy is not detrimental to the national economic policies for purposes of Article 209 of the Constitution, by which the County governments are empowered to raise revenue and levy taxes, rates or any other charges. Hence, the respondent asserted that it acted within its constitutional mandate in demanding for cess and in clamping the petitioners’ motor vehicles for non-payment.
[8] The Petition was urged by way of viva voce evidence. In this regard the 1 st petitioner testified on 19 th September 2023. He adopted his witness statement dated 11 th September 2023 and reiterated his evidence that at no point did he transport coral stones outside Kwale County to warrant the imposts in issue. He produced their List and Bundle of Documents as the Petitioners’ Exhibits 1 to 9.
[9] On behalf of the respondent, evidence was called from Mr. Bakari Hassan Sebe (DW1 ). He likewise adopted the contents of his Replying Affidavit as his evidence in chief. He confirmed that the respondent charges cess on stones at Kshs. 100 per ton and that the amount was for services rendered within the County. It was also his testimony that unless there are changes in the applicable rates, it was not necessary for the respondent to pass a new County Finance Act.
[10] In their closing submissions, the petitioners proposed the following issues for determination:
[a] Whether the collection of cess by the respondent in respect to the coral stones mined from quarries within the respondent’s jurisdiction and used in factories within the County is lawful.
[b] Whether the petitioners are entitled to the reliefs sought in the Petition.
[c] Who bears the costs of this suit.
[ 11] Mr. Ondieki for the petitioners made reference to Section 14 of the Kwale County Finance Act of 2014 and the Kwale County Quarrying Act 2016 to support the argument that there is no express law giving authority to the respondent to collect levy on quarry minerals within the County. He relied on Republic v Commissioner for Domestic Taxes Large Tax Payers Office, Ex Parte Barclays Bank of Kenya Ltd [2012] eKLR, Truckers Association of Kenya v County Government of Machakos [2020] eKLR and Base Titanium Limited v County Government of Mombasa & Another to demonstrate that the respondent charged cess on the transportation of coral stones illegally and in contravention of Article 209 of the Constitution. Accordingly, the petitioners urged the Court to grant them the reliefs prayed for in their Petition.
[12] The respondent relied on its written submissions dated 16 th May 2024 in which it proposed the following issues for determination:
[a] Whether the Petition meets the legal threshold of a constitutional petition.
[b] Whether the respondent has violated the provisions of the Constitution by demanding the payment of cess.
[13] It was the submission of the respondent that, although the petitioners have characterized the Petition as a constitutional petition, they did not state with reasonable measure of precision, the particulars of the alleged violations or the manner in which the provisions of the Constitution have been violated. The respondent relied on Anarita Karimi Njeru v Republic [1976-1980] KLR 1 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR to buttress the argument that the Petition does not meet the legal threshold of a constitutional petition; and therefore that it has been prejudiced as a result of the vagueness and the speculative nature of the Petition.
[14] The respondent urged the Court to decline the invitation to speculate on the provisions of the Constitution allegedly violated. It urged the Court to take into consideration the case of Bernard Muragev Fineserve Africa Limited & 3 others [2015] eKLR for the proposition that the Court cannot make findings based on conjecture.
[15] On whether the respondent infringed any of the provisions of the Constitution by demanding the payment of cess, the respondent relied on Article 185(2) as well as Article 209(3) and (4) of the Constitution as well as the Kwale County Finance Act, 2014 and the Kwale County Quarrying Act , 2016 as the legal basis for the levies. The respondent refuted the contention by the petitioners that the Kwale County Finance Act was outdated and could not form the basis for the levies. It insisted that the activities were carried out within the County and therefore are liable to cess as a charge for services rendered by the County Government of Kwale.
[16] The respondent also relied on the decision of the Supreme Court in Base Titanium Limited v County Government of Mombasa & another (supra) and submitted that it is empowered to raise revenue in respect of services provided within its jurisdiction, such as provision of roads, street-lighting, traffic control and parking, among others. Accordingly, the respondent concluded its submissions by urging the Court to ensure that the powers vested on it for revenue raising are not curtailed or compromised, provided the powers are exercised within the law. The respondent was of the conviction that it acted within its legal mandate by imposing the cess fees on the petitioner. It prayed for the dismissal of the Petition with costs.
[17] I have given careful consideration to the Petition, the averments set out in the parties’ respective affidavits and the viva voce evidence presented by PW1 and DW1. I have also taken into consideration the arguments set out in the written submissions filed herein by their counsel as well as the authorities relied on by them. The first issue that this court must grapple with is whether the Petition herein has met the constitutional threshold as set in Anarita Karimi Njeru v Republic (supra), and upheld in by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra) where it was stated that:
“(42) However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the Court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[18] It is indisputable that, for a constitutional petition to be tenable as such, it must satisfy the basic threshold. The petitioner must, with some reasonable degree of precision, identify the constitutional provisions that are alleged to have been violated or threatened with violation and the manner of the alleged violation and/or threatened violation. The Supreme Court, in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR , held:
“…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
[19] I have keenly gone through the petition. I have observed that it has been brought under Articles 22, 23, 165, 196 and 209 of the Constitution. In paragraphs 10 and 14 of the Petition, the Petitioners have further referred the court to Articles 10, 47 and 210 of the Constitution. At paragraphs 7, 8, 9 and 10 of the Petition, the petitioners set out the particulars in support of the alleged violations. In particular, they stated that the respondent did not provide them with the basis for charging cess at the gate of the Coast Calcium Factory Ltd where they would make deliveries. They further explained that such charges according to the Kwale Quarrying Act, 2016 were only chargeable upon exit from the County of Kwale. That is explicit enough to enable the respondent to respond and, indeed, the respondent provided a fitting response to those allegations.
[20] The petitioners also pleaded that since they are coral suppliers to Coast Calcium Ltd, a factory within the County of Kwale, to be asked to pay cess for stones delivered within the County after paying for other charges for transportation goes against the national values and principles provided for in Article 10 of the Constitution. It is manifest therefore that the Petition was pleaded with sufficient particularity as required by the principle enunciated in Anarita Karimi Njeru v Republic (supra). Besides, Rule 10(3) and (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, recognizes that:
“(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.”
[21] I therefore agree with the conclusion reached by Hon. Odunga, J . (as he then was) in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another (supra) that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
[22] The same position was taken in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, in which the Court of Appeal pointed out that:
“…precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
[23] This was a reiteration of the viewpoint taken by a 3-judge bench of the High Court in Trusted Society of Human Rights Alliance vs. Attorney General & 2 Others [2012] eKLR in which it was held that:
“We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the Court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are so insubstantial and so attenuated that a Court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against the respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case…”
[24] It is therefore my finding that the Petition is compliant and has met the threshold for constitutional petitions. That said, the next issue for determination is whether the respondent has violated the provisions of the Constitution by demanding the payment of cess.
[25] Needless to mention that the burden of proof is on he who alleges and therefore it was incumbent upon the petitioners to prove all aspects of their claim on a balance of probabilities. In Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) (Judgment) the Supreme Court held:
66. The two superior courts below were of the unanimous view that a petitioner bears the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which is on a balance of probabilities. We affirm this juridical standpoint bearing in mind that such claims are by nature civil causes. See Deynes Muriithi & 4 others v Law Society of Kenya & another , SC Application No 12 of 2015; [2016] eKLR.
67. In this case, the onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that firstly, she owned or erected or lived in the alleged properties; and secondly, that state agents interfered or deprived her of the subject properties. This, as was aptly appreciated by the superior courts, is the import of section 107 of the Evidence Act on the burden of proof. The provision stipulates:
1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
In addition, section 109 of the Evidence Act elaborates on the onus of proof by stipulating that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[26] Likewise, in Leonard Otieno v Airtel Kenya Limited [2018] eKLR it was emphasized that:
“It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the proposition he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be in a factual vacuum. To attempt to do so would trivialize the Constitution an inevitable result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon unsupported hypotheses.”
[27] Article 209(3), (4) and (4) of the Constitution is explicit that:
“(3) A county may impose—
(a) property rates;
(b) entertainment taxes; and
(c) any other tax that it is authorised to impose by an Act of Parliament.
(4) The national and county governments may impose charges for the services they provide.
(5) The taxation and other revenue-raising powers of a county shall not be exercised in a way that prejudices national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour.”
[28] Indeed, in Base Titanium v County Government of Mombasa & Another (supra) the Supreme Court pronounced itself in this regard at paragraphs 25 and 29 as follows:
“Under the provisions of article 209, a county is empowered to raise revenue and levy taxes, rates, or other charges. Additionally, under sub article (4), the 1st respondent is authorized to impose charges for services provided…Consequently, we agree with the High Court and the Court of Appeal, only to the extent that County Governments have the mandate to charge levies for services rendered.”
[29] The Supreme Court then proceeded to state, that under Sub Article (4) such charges can only be imposed for services rendered by the respondent. Accordingly, the Supreme Court explained the meaning of the word “services” in this context as follows:
“So then, what is the meaning of the word ‘services’ for purposes of application within the meaning of article 209(4) of the Constitution ? The word ‘service’ as provided in the Oxford Dictionary of English 3rd Edition 2015 is “a system that provides something that the public needs, organized by the government or a private company”. This may include for County transport which entails County roads; street lighting; traffic and parking; public roads transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprise some of the functions and powers of County Governments under Schedule four part 2, section 5.
26.Taking that definition into account, a plain reading of that article reveals that the intention of article 209(4) of the Constitution , is to confer County Governments the discretionary powers to impose charges for services, more specifically, that they can charge or impose a payment in exchange of a public need or amenity.
27.To our minds, the insertion of the words ‘for services’ in article 209(4), are a qualification to the charge of the services. Whereas a County can levy charges, it must do so in exchange for an amenity. Put differently, a County does not have the authority to charge a cess, levy or tax where they do not offer anything in return.
28.Undoubtedly, Constitution permits County Governments to impose charges for the realization of its powers under the Fourth schedule. But that power does not go unchecked, in the spirit of harmonious interpretation of the Constitution, in enacting the law, County Governments must heed the provisions of article 209 (5) and ensure that the charges invoked will not be detrimental to national economic policies, economic activities across boundaries or the national mobility of goods, services, capital or labor.
[30] In the premises, for the respondent to charge cess, it must demonstrate not only that the impost is provided for in its Finance Act but also that there is a reciprocal amenity or amenities for which the levy is imposed . In the respondent’s Replying Affidavit sworn by its County Executive Committee Member in charge of Finance, Executive Services and Economic Planning, Mr. Bakari Hassan Sebe (DW1) , it was deposed the levying of cess was in conformity with the Kwale County Finance Act, 2014 and Kwale Quarrying Act, 2016 , both of which were enacted pursuant to Article 209(4) of the Constitution.
[31] The respondent explained that cess is provided for under the Schedule to the Kwale County Finance Act as payable to the County for the use of County roads and not mining activities. Hence, the respondent asserted that it acted within its constitutional mandate in demanding for cess and in clamping the petitioners’ motor vehicles for non-payment. In his viva voce evidence, DW1 adopted that affidavit and confirmed that the respondent charges cess on stones at Kshs. 100 per ton and that the amount was for services rendered within the County. It was also his testimony that unless there are changes in the applicable rates, it was not necessary for the respondent to pass a new County Finance Act every year.
[32] It is noted however that, under the Schedule of Fees and Charges provided for in the Kwale County Finance Act, 2014 , cess is only chargeable in respect of agricultural produce, charcoal and molasses. There is no provision at pages 12 and 13 of the Schedule to cater for stones. However, under Mining Levies, there is provision for Sand/Stone at Kshs. 100 per ton. Therefore, there is considerable merit in the assertion by PW1 that once the quarries pay for mining, they were under no obligation to pay cess in the sum of Kshs. 100 per ton for the stones they transported to the Coast Calcium Ltd. At any rate, DW1 was categorical that the cess charged was not for mining. I therefore find as a fact that the charge had no place in the Schedule to the Kwale County Finance Act, 2014.
[33] Even assuming that the impost was provided for, the question to pose then, is what service was the charge in respect of. The contention of DW1, at paragraph 8 of his Replying Affidavit was that the impost was in respect of use of the county roads. At paragraph 20 of the respondent’s written submission Section 14 of the Kwale Quarrying Act, 2016 was relied on to demonstrate that the cess was in respect of services rendered within its jurisdiction and the roads used by the petitioners to transport the stones. However, the respondent fell short of demonstrating that the road that was routinely used by the petitioners was a county road. The respondent therefore failed to rebut the assertion by the petitioners that they were using the Lungalunga Likoni road which is a national highway taken care of by the National Government.
[34] Moreover, the provision states:
“Common mineral transporters from outside the county shall attract cess payment as per relevant county cess Act for goods coming and temporary permits for goods going out.”
[35] The petitioners were categorical that they were transporting quarry stones within the County and therefore did not fall within the category of transporters envisaged by Section 14 of the Kwale County Quarrying Act . As a matter of fact, no attempt was made by the respondent to refute this assertion, yet the following provisions of the Evidence Act, Chapter 80 of the Laws of Kenya , are explicit:
[a] Section 107 of the Evidence Act , Chapter 80 of the Laws of Kenya provides that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[b] Section 108 of the Evidence Act provides that:
The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
[c] Section 109 of the Evidence Act provides that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[d] Lastly, Section 112 provides that:
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
[36] This point was made by the Supreme Court in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment) , as follows:
“…a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden…”
[37] I n the Base Titanium , the Supreme Court expressed itself in this regard at paragraphs 39 and 40 of its Judgment that:
“It is not in dispute that to access the Port, the appellant must use the Likoni-Ukunda Road which the Kenyan road system identifies as an A14 road. Going by the background and network system explained in detail above, that road, A14 falls directly into the category of a national road. That category falls directly under the mandate of KeNHA and the National government which is in charge of its development, rehabilitation, management and maintenance. In this matter, we note that the County Government has not clarified how the charge
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[2] The Petitioners averred that their efforts to have their concerns discussed with the respondent have yielded no fruits. They added that they also tried to negotiate with the respondent and have the cess levy reduced to Kshs. 10 per ton, but even this request was declined. It was therefore their contention that the cess levy goes against the national values and principles stipulated under Articles 10, 209(5) and 210 of the Constitution and the Public Finance and Management Act, 2012 .
[3] The petitioners also complained that the respondent had raised invoices for payment for the period from 18 th August 2022 to 8 th October 2022 being Kshs. 686,700/=, Kshs. 174,100/= and Kshs. 55,400/= for the 1 st , 2 nd and 3 rd petitioners, respectively. They further averred that, to recover the sums mentioned, the respondent clamped their vehicles. It is their contention that the clamping was done in violation of their right to fair administrative action under Article 47 of the Constitution.
[4] The petitioners also took issue with the fact that the respondent relied on outdated County laws to charge them cess. They posited that the respondent is expected by the Constitution to enact Finance Acts on an annual basis; and therefore there was no legal basis for levying cess for the year 2022.
[5] Accordingly, the petitioners prayed for the following reliefs against the respondent:
[a] A declaration that the collection of cess from the petitioners for coral stones mined from the local quarries within the County is unconstitutional, null and void.
[b] An order quashing all the invoices issued to the petitioners by the respondent in relation to the payment of cess and for de-clamping charges as per the invoices dated 12 th October 2022 and Clamping Sheet dated 25 th November 2022.
[c] A permanent injunction to restrain the respondent whether by itself, its agents, servants, employees or whosoever else acting under its directions and/or instructions from holding, clamping, restraining movement, impounding, sanctioning, prosecuting and/or dealing in any way with Motor Vehicles Registration Numbers KDH 001Z, KBJ 329D and KAG 148D or any other vehicles belonging to the petitioners.
[d] Loss of user damages from the impounding of the petitioners’ motor vehicles to be assessed by Court as per the Contract dated 25 th June 2022.
[e] General damages
[f] Costs of the Petition
[g] Any other relief as the Court deems appropriate in the circumstances to grant.
[6] The respondent opposed the Petition. It relied on the Replying Affidavit sworn by its County Executive Committee Member in charge of Finance, Executive Services and Economic Planning, Mr. Bakari Hassan Sebe . According to the respondent, the Petition herein does not raise any substantive constitutional issue or any public interest concerns. It averred as the levying of cess was in conformity with the Kwale County Finance Act, 2014 and Kwale Quarrying Act, 2016 , both of which were enacted pursuant to Article 209(4) of the Constitution. The respondent explained that the cess is provided for under the Schedule to the Kwale County Finance Act as payable to the County for the use of County roads and not mining activities.
[7] The respondent relied on the Supreme Court case Base Titanium Limited v County Government of Mombasa & another (Petition 22 of 2018) [2021] KESC 33 (KLR) (16 July 2021) (Judgment) to support its assertion that the imposition of the levy is not detrimental to the national economic policies for purposes of Article 209 of the Constitution, by which the County governments are empowered to raise revenue and levy taxes, rates or any other charges. Hence, the respondent asserted that it acted within its constitutional mandate in demanding for cess and in clamping the petitioners’ motor vehicles for non-payment.
[8] The Petition was urged by way of viva voce evidence. In this regard the 1 st petitioner testified on 19 th September 2023. He adopted his witness statement dated 11 th September 2023 and reiterated his evidence that at no point did he transport coral stones outside Kwale County to warrant the imposts in issue. He produced their List and Bundle of Documents as the Petitioners’ Exhibits 1 to 9.
[9] On behalf of the respondent, evidence was called from Mr. Bakari Hassan Sebe (DW1 ). He likewise adopted the contents of his Replying Affidavit as his evidence in chief. He confirmed that the respondent charges cess on stones at Kshs. 100 per ton and that the amount was for services rendered within the County. It was also his testimony that unless there are changes in the applicable rates, it was not necessary for the respondent to pass a new County Finance Act.
[10] In their closing submissions, the petitioners proposed the following issues for determination:
[a] Whether the collection of cess by the respondent in respect to the coral stones mined from quarries within the respondent’s jurisdiction and used in factories within the County is lawful.
[b] Whether the petitioners are entitled to the reliefs sought in the Petition.
[c] Who bears the costs of this suit.
[ 11] Mr. Ondieki for the petitioners made reference to Section 14 of the Kwale County Finance Act of 2014 and the Kwale County Quarrying Act 2016 to support the argument that there is no express law giving authority to the respondent to collect levy on quarry minerals within the County. He relied on Republic v Commissioner for Domestic Taxes Large Tax Payers Office, Ex Parte Barclays Bank of Kenya Ltd [2012] eKLR, Truckers Association of Kenya v County Government of Machakos [2020] eKLR and Base Titanium Limited v County Government of Mombasa & Another to demonstrate that the respondent charged cess on the transportation of coral stones illegally and in contravention of Article 209 of the Constitution. Accordingly, the petitioners urged the Court to grant them the reliefs prayed for in their Petition.
[12] The respondent relied on its written submissions dated 16 th May 2024 in which it proposed the following issues for determination:
[a] Whether the Petition meets the legal threshold of a constitutional petition.
[b] Whether the respondent has violated the provisions of the Constitution by demanding the payment of cess.
[13] It was the submission of the respondent that, although the petitioners have characterized the Petition as a constitutional petition, they did not state with reasonable measure of precision, the particulars of the alleged violations or the manner in which the provisions of the Constitution have been violated. The respondent relied on Anarita Karimi Njeru v Republic [1976-1980] KLR 1 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR to buttress the argument that the Petition does not meet the legal threshold of a constitutional petition; and therefore that it has been prejudiced as a result of the vagueness and the speculative nature of the Petition.
[14] The respondent urged the Court to decline the invitation to speculate on the provisions of the Constitution allegedly violated. It urged the Court to take into consideration the case of Bernard Muragev Fineserve Africa Limited & 3 others [2015] eKLR for the proposition that the Court cannot make findings based on conjecture.
[15] On whether the respondent infringed any of the provisions of the Constitution by demanding the payment of cess, the respondent relied on Article 185(2) as well as Article 209(3) and (4) of the Constitution as well as the Kwale County Finance Act, 2014 and the Kwale County Quarrying Act , 2016 as the legal basis for the levies. The respondent refuted the contention by the petitioners that the Kwale County Finance Act was outdated and could not form the basis for the levies. It insisted that the activities were carried out within the County and therefore are liable to cess as a charge for services rendered by the County Government of Kwale.
[16] The respondent also relied on the decision of the Supreme Court in Base Titanium Limited v County Government of Mombasa & another (supra) and submitted that it is empowered to raise revenue in respect of services provided within its jurisdiction, such as provision of roads, street-lighting, traffic control and parking, among others. Accordingly, the respondent concluded its submissions by urging the Court to ensure that the powers vested on it for revenue raising are not curtailed or compromised, provided the powers are exercised within the law. The respondent was of the conviction that it acted within its legal mandate by imposing the cess fees on the petitioner. It prayed for the dismissal of the Petition with costs.
[17] I have given careful consideration to the Petition, the averments set out in the parties’ respective affidavits and the viva voce evidence presented by PW1 and DW1. I have also taken into consideration the arguments set out in the written submissions filed herein by their counsel as well as the authorities relied on by them. The first issue that this court must grapple with is whether the Petition herein has met the constitutional threshold as set in Anarita Karimi Njeru v Republic (supra), and upheld in by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra) where it was stated that:
“(42) However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the Court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[18] It is indisputable that, for a constitutional petition to be tenable as such, it must satisfy the basic threshold. The petitioner must, with some reasonable degree of precision, identify the constitutional provisions that are alleged to have been violated or threatened with violation and the manner of the alleged violation and/or threatened violation. The Supreme Court, in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR , held:
“…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
[19] I have keenly gone through the petition. I have observed that it has been brought under Articles 22, 23, 165, 196 and 209 of the Constitution. In paragraphs 10 and 14 of the Petition, the Petitioners have further referred the court to Articles 10, 47 and 210 of the Constitution. At paragraphs 7, 8, 9 and 10 of the Petition, the petitioners set out the particulars in support of the alleged violations. In particular, they stated that the respondent did not provide them with the basis for charging cess at the gate of the Coast Calcium Factory Ltd where they would make deliveries. They further explained that such charges according to the Kwale Quarrying Act, 2016 were only chargeable upon exit from the County of Kwale. That is explicit enough to enable the respondent to respond and, indeed, the respondent provided a fitting response to those allegations.
[20] The petitioners also pleaded that since they are coral suppliers to Coast Calcium Ltd, a factory within the County of Kwale, to be asked to pay cess for stones delivered within the County after paying for other charges for transportation goes against the national values and principles provided for in Article 10 of the Constitution. It is manifest therefore that the Petition was pleaded with sufficient particularity as required by the principle enunciated in Anarita Karimi Njeru v Republic (supra). Besides, Rule 10(3) and (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, recognizes that:
“(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.”
[21] I therefore agree with the conclusion reached by Hon. Odunga, J . (as he then was) in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another (supra) that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
[22] The same position was taken in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, in which the Court of Appeal pointed out that:
“…precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
[23] This was a reiteration of the viewpoint taken by a 3-judge bench of the High Court in Trusted Society of Human Rights Alliance vs. Attorney General & 2 Others [2012] eKLR in which it was held that:
“We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the Court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are so insubstantial and so attenuated that a Court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against the respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case…”
[24] It is therefore my finding that the Petition is compliant and has met the threshold for constitutional petitions. That said, the next issue for determination is whether the respondent has violated the provisions of the Constitution by demanding the payment of cess.
[25] Needless to mention that the burden of proof is on he who alleges and therefore it was incumbent upon the petitioners to prove all aspects of their claim on a balance of probabilities. In Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) (Judgment) the Supreme Court held:
66. The two superior courts below were of the unanimous view that a petitioner bears the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which is on a balance of probabilities. We affirm this juridical standpoint bearing in mind that such claims are by nature civil causes. See Deynes Muriithi & 4 others v Law Society of Kenya & another , SC Application No 12 of 2015; [2016] eKLR.
67. In this case, the onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that firstly, she owned or erected or lived in the alleged properties; and secondly, that state agents interfered or deprived her of the subject properties. This, as was aptly appreciated by the superior courts, is the import of section 107 of the Evidence Act on the burden of proof. The provision stipulates:
1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
In addition, section 109 of the Evidence Act elaborates on the onus of proof by stipulating that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[26] Likewise, in Leonard Otieno v Airtel Kenya Limited [2018] eKLR it was emphasized that:
“It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the proposition he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be in a factual vacuum. To attempt to do so would trivialize the Constitution an inevitable result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon unsupported hypotheses.”
[27] Article 209(3), (4) and (4) of the Constitution is explicit that:
“(3) A county may impose—
(a) property rates;
(b) entertainment taxes; and
(c) any other tax that it is authorised to impose by an Act of Parliament.
(4) The national and county governments may impose charges for the services they provide.
(5) The taxation and other revenue-raising powers of a county shall not be exercised in a way that prejudices national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour.”
[28] Indeed, in Base Titanium v County Government of Mombasa & Another (supra) the Supreme Court pronounced itself in this regard at paragraphs 25 and 29 as follows:
“Under the provisions of article 209, a county is empowered to raise revenue and levy taxes, rates, or other charges. Additionally, under sub article (4), the 1st respondent is authorized to impose charges for services provided…Consequently, we agree with the High Court and the Court of Appeal, only to the extent that County Governments have the mandate to charge levies for services rendered.”
[29] The Supreme Court then proceeded to state, that under Sub Article (4) such charges can only be imposed for services rendered by the respondent. Accordingly, the Supreme Court explained the meaning of the word “services” in this context as follows:
“So then, what is the meaning of the word ‘services’ for purposes of application within the meaning of article 209(4) of the Constitution ? The word ‘service’ as provided in the Oxford Dictionary of English 3rd Edition 2015 is “a system that provides something that the public needs, organized by the government or a private company”. This may include for County transport which entails County roads; street lighting; traffic and parking; public roads transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprise some of the functions and powers of County Governments under Schedule four part 2, section 5.
26.Taking that definition into account, a plain reading of that article reveals that the intention of article 209(4) of the Constitution , is to confer County Governments the discretionary powers to impose charges for services, more specifically, that they can charge or impose a payment in exchange of a public need or amenity.
27.To our minds, the insertion of the words ‘for services’ in article 209(4), are a qualification to the charge of the services. Whereas a County can levy charges, it must do so in exchange for an amenity. Put differently, a County does not have the authority to charge a cess, levy or tax where they do not offer anything in return.
28.Undoubtedly, Constitution permits County Governments to impose charges for the realization of its powers under the Fourth schedule. But that power does not go unchecked, in the spirit of harmonious interpretation of the Constitution, in enacting the law, County Governments must heed the provisions of article 209 (5) and ensure that the charges invoked will not be detrimental to national economic policies, economic activities across boundaries or the national mobility of goods, services, capital or labor.
[30] In the premises, for the respondent to charge cess, it must demonstrate not only that the impost is provided for in its Finance Act but also that there is a reciprocal amenity or amenities for which the levy is imposed . In the respondent’s Replying Affidavit sworn by its County Executive Committee Member in charge of Finance, Executive Services and Economic Planning, Mr. Bakari Hassan Sebe (DW1) , it was deposed the levying of cess was in conformity with the Kwale County Finance Act, 2014 and Kwale Quarrying Act, 2016 , both of which were enacted pursuant to Article 209(4) of the Constitution.
[31] The respondent explained that cess is provided for under the Schedule to the Kwale County Finance Act as payable to the County for the use of County roads and not mining activities. Hence, the respondent asserted that it acted within its constitutional mandate in demanding for cess and in clamping the petitioners’ motor vehicles for non-payment. In his viva voce evidence, DW1 adopted that affidavit and confirmed that the respondent charges cess on stones at Kshs. 100 per ton and that the amount was for services rendered within the County. It was also his testimony that unless there are changes in the applicable rates, it was not necessary for the respondent to pass a new County Finance Act every year.
[32] It is noted however that, under the Schedule of Fees and Charges provided for in the Kwale County Finance Act, 2014 , cess is only chargeable in respect of agricultural produce, charcoal and molasses. There is no provision at pages 12 and 13 of the Schedule to cater for stones. However, under Mining Levies, there is provision for Sand/Stone at Kshs. 100 per ton. Therefore, there is considerable merit in the assertion by PW1 that once the quarries pay for mining, they were under no obligation to pay cess in the sum of Kshs. 100 per ton for the stones they transported to the Coast Calcium Ltd. At any rate, DW1 was categorical that the cess charged was not for mining. I therefore find as a fact that the charge had no place in the Schedule to the Kwale County Finance Act, 2014.
[33] Even assuming that the impost was provided for, the question to pose then, is what service was the charge in respect of. The contention of DW1, at paragraph 8 of his Replying Affidavit was that the impost was in respect of use of the county roads. At paragraph 20 of the respondent’s written submission Section 14 of the Kwale Quarrying Act, 2016 was relied on to demonstrate that the cess was in respect of services rendered within its jurisdiction and the roads used by the petitioners to transport the stones. However, the respondent fell short of demonstrating that the road that was routinely used by the petitioners was a county road. The respondent therefore failed to rebut the assertion by the petitioners that they were using the Lungalunga Likoni road which is a national highway taken care of by the National Government.
[34] Moreover, the provision states:
“Common mineral transporters from outside the county shall attract cess payment as per relevant county cess Act for goods coming and temporary permits for goods going out.”
[35] The petitioners were categorical that they were transporting quarry stones within the County and therefore did not fall within the category of transporters envisaged by Section 14 of the Kwale County Quarrying Act . As a matter of fact, no attempt was made by the respondent to refute this assertion, yet the following provisions of the Evidence Act, Chapter 80 of the Laws of Kenya , are explicit:
[a] Section 107 of the Evidence Act , Chapter 80 of the Laws of Kenya provides that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[b] Section 108 of the Evidence Act provides that:
The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
[c] Section 109 of the Evidence Act provides that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[d] Lastly, Section 112 provides that:
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
[36] This point was made by the Supreme Court in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment) , as follows:
“…a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden…”
[37] I n the Base Titanium , the Supreme Court expressed itself in this regard at paragraphs 39 and 40 of its Judgment that:
“It is not in dispute that to access the Port, the appellant must use the Likoni-Ukunda Road which the Kenyan road system identifies as an A14 road. Going by the background and network system explained in detail above, that road, A14 falls directly into the category of a national road. That category falls directly under the mandate of KeNHA and the National government which is in charge of its development, rehabilitation, management and maintenance. In this matter, we note that the County Government has not clarified how the charge
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